Is Common Pleas Court Review of Administrative Agency
Order Subject to Ohio Rules of Appellate Procedure?

ISSUE: When an order issued by an administrative board or agency includes some provisions that are unfavorable to each party in a dispute, and one party appeals the agency’s order to a court of common pleas, must the other party file a cross-appeal setting forth its own separate assignments of error in order to preserve those issues for judicial review, or does a notice of appeal filed by any party give the common pleas court jurisdiction to review all aspects of the administrative agency’s order?

BACKGROUND: R.C. 119.12 and R.C. Chapter 2506 provide that, under most circumstance, when a party is adversely affected by an order or decision of an administrative board or agency of the state or a political subdivision, that party may seek judicial review of the agency’s order by filing a notice of appeal in a common pleas court. (Some agency rulings may be appealed to the common pleas court in the county where the appellant resides. The decisions of certain specified agencies, such as the state medical, chiropractic and nursing boards, are subject to review only in the Franklin County common pleas court.)

In this case, AT&T Communications of Ohio filed an application with the Cleveland city tax commissioner, Nassim M. Lynch, seeking a refund of alleged overpayments of the company’s municipal income taxes for the 1999 through 2002 tax years. The commissioner denied the requested refund for 1999, and reduced the requested refunds for 2000 through 2002 based on a finding that AT&T had improperly excluded income from interest in calculating its tax liability for those years. The commissioner also withheld an additional $57,000 from the requested refund for 2000-2002 as an offset against a withholding tax assessment against AT&T Ohio’s parent company, AT&T Corporation.

AT&T Ohio appealed the commissioner’s rulings on all three issues to the city’s Board of Income Tax Review. The board affirmed the denial of a refund for 1999, but reversed the commissioner’s findings with regard to the taxability of the company’s interest income and the collection of the parent corporation’s delinquency through a reduction in AT&T Ohio’s refund.

AT&T Ohio appealed the review board’s decision to the Cuyahoga County Court of Common Pleas, setting forth as its only assignment of error the denial of its requested refund for 1999. In his response to AT&T Ohio’s pleadings, the tax commissioner not only urged the common pleas court to affirm the board’s ruling denying a refund for 1999, but also urged the court to judicially reverse the board’s rulings with regard to the taxability of AT&T Ohio’s interest income and the city’s right to withhold the assessment against the parent company from AT&T Ohio’s refund for 2000-2002. The common pleas court affirmed the denial of the 1999 refund, but reversed the board and ruled in favor of the commissioner on both the interest income and assessment recovery issues.

AT&T Ohio appealed the common pleas court’s rulings on all three issues to the 8th District Court of Appeals. Among other arguments, AT&T Ohio asserted that because the commissioner had not filed his own cross-appeal of the review board’s decision with the common pleas court, under Ohio’s rules of appellate procedure, the court only had jurisdiction to review the 1999 refund question that was raised by AT&T Ohio in its notice of appeal. The 8th District agreed, and voided the portions of the common pleas court’s decision that addressed the interest income and parent company assessment issues for lack of jurisdiction. The tax commissioner sought and was granted Supreme Court review of the 8th District’s ruling.

Attorneys for Cleveland argue that, while R.C. 119.12 and Chapter 2506 authorize common pleas courts to hear “appeals” of administrative agency orders, nothing in the state constitution or the statutes governing such proceedings vests common pleas courts with “appellate” jurisdiction, or requires those courts to follow the state’s rules of appellate procedure in conducting their review of administrative decisions. In this case, they assert, the 8th District erred in holding that the tax commissioner was required to file a formal “cross-appeal” pursuant to the rules of appellate procedure in order to assert assignments of error other than the 1999 refund issue raised by AT&T in its notice of appeal. They point out that there is no requirement of or reference to “cross appeals,” in the statutes or rules that govern judicial review of administrative orders, and argue that any party’s action in appealing such an order to a common pleas court places the entire order under judicial review and allows other parties affected by the order to raise their own assignments of error without filing a separate, redundant notice of appeal.

Attorneys for AT&T Ohio argue that the Ohio Constitution confers on common pleas courts both original jurisdiction to hear and decide specified legal matters and appellate jurisdiction to review the decisions of administrative boards and agencies. When a common pleas court exercises its appellate jurisdiction, they contend, it is required to follow the state’s rules of appellate procedure, including the requirement that a reviewing court has jurisdiction to consider only those assignments of error that are specifically raised in a timely notice of appeal or cross-appeal filed with the court by a party. In this case, they say, the tax commissioner did not file a timely cross-appeal of the review board’s rulings that AT&T Ohio’s interest income was tax-exempt and that the commissioner was barred from reducing the company’s tax refund to pay an assessment owed by its parent corporation. Therefore, they assert, the 8th District was correct in holding that the common pleas court had no jurisdiction to review and reverse the board’s rulings on those issues.

Contacts
Linda L. Bickerstaff, 216.664.4406, for tax commissioner Nassim M. Lynch and the city of Cleveland.

Did State Violate Privacy Rights of Criminal Defendant by Retaining His DNA Profile in Database After Acquittal?

ISSUE: Under pre-2010 Ohio law, when a suspect in a criminal investigation was ordered by a court to submit a sample of his DNA for profiling, and the suspect was subsequently acquitted in that case, did the state’s post-acquittal retention of the defendant’s DNA profile in a law enforcement database, and later comparison of that profile against DNA from a different crime for which the subject was not a suspect, violate the subject’s Fourth Amendment right against unreasonable searches and seizures?

BACKGROUND: As a suspect in a 2005 rape case, Dajuan Emerson of Cleveland was ordered by a court to provide a DNA sample for comparison with biological material recovered from the crime scene. That sample was tested, and a profile of Emerson’s DNA was created. Testing of the crime scene material subsequently revealed that it did not include any male DNA, so the sample taken from Emerson and the DNA profile based on that sample were of no value in establishing his guilt or innocence in the rape case. Notwithstanding the absence of DNA evidence, Emerson was charged with rape. He was acquitted by a jury.

Emerson’s DNA profile was retained in the state’s Combined DNA Index System (CODIS). In 2009, police officers investigating a “cold case” 2007 murder submitted blood recovered from a doorknob at the murder scene for comparison against DNA profiles in the CODIS database. The system found a match between the blood recovered at the crime scene and Emerson’s DNA profile. Emerson had not been a suspect or a person of interest in the investigation of the murder until the DNA match was discovered.

Emerson was indicted on charges of aggravated murder, aggravated burglary and tampering with evidence. Prior to trial, Emerson moved to exclude all evidence based on the search of his DNA profile that had been retained in CODIS. He argued that the laws in effect at the time of his 2005 rape acquittal authorized retention of DNA profiles in CODIS for persons convicted of certain crimes and certain other categories of persons that did not include Emerson, but did not authorize the state to retain DNA profiles of persons who had been acquitted of the crime that was the basis for obtaining a DNA sample. [In 2010, the General Assembly enacted S.B. 77, which amended the applicable statutes to require that any person arrested on a felony charge after July 1, 2011, must provide a DNA sample for profiling, and authorized retention of such persons’ DNA profiles in CODIS regardless of whether the arrestee is subsequently convicted or acquitted at trial.]

The trial court denied the motion to exclude the evidence obtained through the CODIS search. Emerson was convicted of aggravated murder and tampering with evidence, and sentenced to a prison term of from 25 years to life. On review, the 8th District Court of Appeals affirmed the trial court’s denial of Emerson’s motion to exclude the DNA evidence. In its opinion, the court of appeals ruled that the state’s retention of Emerson’s DNA profile after his 2005 rape acquittal was not prohibited under the pre-2010 version of the applicable statutes. The court held further that, even if retention had been unlawful, once the state had lawfully obtained a sample of Emerson’s DNA and created a profile from that sample, Emerson had no possessory or privacy interest in the profile (as opposed to the tissue sample itself) and therefore had no legal standing to challenge the state’s future retention or use of that profile.

Emerson sought and was granted Supreme Court review of the 8th District’s decision.

Attorneys for Emerson assert that Ohio’s statutory scheme governing DNA testing of criminal suspects recognizes the intrusive nature of such tests and an individual’s significant privacy interest in his or her own genetic information by requiring the state to obtain a warrant signed by a judge before it can compel a suspect who has not been arrested to provide a tissue sample for such testing. They contend that at the time Emerson was compelled to provide a DNA sample in 2005, the sole basis for allowing that intrusion and subsequent testing of his genetic material was a reasonable suspicion that he had been involved in a specific crime. They point out that the statutes in effect at that time authorized the state to retain the results of DNA testing in criminal cases only when the provider of a DNA sample had been convicted, and made no similar allowance for defendants who were acquitted.

By allowing the state to retain Emerson’s constitutionally protected medical information in the CODIS database without any legal authorization to do so, they assert, the 8th District’s decision effectively subjects him and other similarly situated persons to an ongoing “search” of their confidential medical information for the rest of their lives, without the need for any legal justification of future searches, despite the fact that the defendant was found not guilty of the charge that was the sole basis for allowing the state to obtain his confidential information in the first place.

Attorneys for the state urge the Court to affirm the 8th District’s holding that the pre-S.B. 77 version of the DNA profiling statutes gave a criminal defendant who was acquitted the right to seek expungement of his record, including removal of his DNA profile from CODIS. Because Emerson failed to exercise that option, they assert, he waived any later claim that the state violated his search and seizure or privacy rights by retaining his lawfully obtained DNA information in its database and comparing that information to biological evidence from future crime scenes.

The state also contends that the DNA profile developed through laboratory analysis of a suspect’s tissue sample is a separate, public document that the state creates and has a right to retain regardless of the disposition of the tissue sample itself. The prosecutor argues that future comparisons of crime scene evidence against DNA profiles retained in the CODIS database do not implicate Fourth Amendment search and seizure rights because they do not subject an individual to any new physical intrusion into or examination of his person or property.

Contacts
Katherine Mullin, 216.698.7919, for the state and Cuyahoga County prosecutors' office.

ISSUE: Under the state laws that govern termination of township police officers in townships that do not have a civil service commission, when a certified police officer who has been promoted to the position of chief of police is subsequently terminated as chief by the township’s trustees other than for cause, does that person retain the right to be reinstated to the position he held before being promoted to chief?

BACKGROUND: Kelly Blair was employed as a certified police officer with the Sugarcreek Township Police Department prior to being promoted to chief of police in 1999. As chief of police, he served at the pleasure of the township trustees and could be terminated from that position by a vote of the trustees without any required showing of fault or misconduct.

On Sept. 8, 2006, the township trustees voted in executive session, without notice to Blair, without conducting a hearing and without stating any cause, that he be asked to resign as chief of police and if he refused to resign that he be placed on administrative leave pending termination. Blair refused to resign and was placed on administrative leave. On Sept. 18, 2006, the trustees voted, again without notice to Blair, without conducting a hearing and without stating any cause, that his employment as chief of police be terminated as of that date. Neither the resolution terminating Blair’s employment as chief nor any subsequent enactment of the trustees reinstated Blair to his pre-promotion position as a certified officer with the township police department.

Blair appealed the trustees’ termination order to the Greene County Court of Common Pleas. While he did not dispute the trustees’ authority to terminate him as chief of police without cause and without a hearing, he argued that R.C. 505.49(B) barred the trustees from terminating his employment as a certified police officer without asserting a specific claim that he was guilty of neglect of duty or some other “firing offense” set forth in that statute, and without conducting a hearing at which he was able to defend himself against that claim.

The common pleas court initially ordered the township to reinstate Blair to the position he held before being promoted to police chief. The township appealed that ruling. On review, the 2nd District ruled that the trustees’ resolution that Blair was appealing had addressed only his firing as chief, and had not addressed his firing from or continued employment in his previous position. The court of appeals therefore remanded the case to the common pleas court for a determination of whether Blair had been terminated from employment as a certified officer, and if so, if that firing was done without legally required due process.

On remand, the common pleas court found that the statutory language requiring reinstatement of a fired police chief to his former position as a certified officer appears in R.C. 505.49(C), a section of the law that applies only to townships that have created their own civil service commission. Because Sugarcreek Township was not large enough to have a civil service commission, the court held that Blair was subject to firing from his position as chief without cause, and was not legally entitled to reinstatement to his former position. Blair appealed that ruling. The 2nd District affirmed that the reinstatement requirement in R.C. 505.49(C) applied only to “civil service” townships, and held that, after accepting the promotion to chief, Blair had ceased to be a “certified officer” entitled to the due process protections of R.C. 505.49(B).

The 2nd District subsequently certified that its ruling with regard to Blair’s right to reinstatement was in conflict with a 1987 decision, Staley v. St. Clair Twp. in which the 7th District Court of Appeals held that once a police officer had completed a certified training program, his promotion to the position of police chief and later firing from that position other than for cause did not deprive him of the due-process protection afforded to all certified officers by R.C. 505.49(B). The Supreme Court has agreed to review the case to resolve the conflict between appellate districts.

Attorneys for Blair argue that the specific language in R.C. 505.49(C) addressing the reinstatement rights of police chiefs in civil service townships was enacted by the legislature in 1978 to correct an oversight in the 1974 bill that for the first time allowed townships to form civil service commissions. They say the automatic reinstatement language was inserted in the law in 1978 because the 1974 bill inadvertently failed to extend the long-standing due process rights of all tenured police officers, including those promoted to chief of police, in R.C. 505.49(B) to those who were placed in the unclassified position of chief of police in newly created civil service jurisdictions.

They argue that there is no indication of legislative intent and no rational basis for the legislature to have granted automatic reinstatement to a prior rank to fired police chiefs in civil service townships but to deny that same protection to those in smaller townships. They assert that if the 2nd District’s ruling in this case is affirmed, well qualified, veteran township officers will refuse to accept promotion to chief because that would mean sacrificing their job security and exposing themselves to arbitrary firing without cause with no right to a hearing or to be reinstated to their previous rank.

Attorneys for Sugarcreek Township respond that the plain language of R.C. 505.49(C) extends automatic reinstatement rights only to police chiefs in civil service townships, and therefore does not apply to Blair. They also point out that the due-process protections set forth in R.C. 505.49(B) explicitly apply to a “patrol officer, other police district employee or police constable” but make no mention of chiefs of police, whom the statute clearly indicates serve at the pleasure of the township trustees and are subject to removal from that position by a two-thirds vote of the trustees.

Unauthorized Practice of Law

The Board on Unauthorized Practice of Law has recommended that the Supreme Court impose a civil penalty of $20,000 against Alpha Legal Services Inc. of Cleveland and its proprietor, Michael D. Davie, and issue an injunction barring Davie and his company from engaging in further conduct that constitutes practicing law without a license.

The board found that Davie and his company engaged in the unauthorized practice of law in one case by charging $1,500 to meet with an incarcerated criminal defendant, advise that person on what plea to enter, conduct legal research, and prepare motions to dismiss and to suppress evidence in the defendant’s case despite the fact that Davie has never been admitted to the practice of law in Ohio or any other state. Davie, who was released from prison in 2006 after serving 14 years of a sentence for multiple felony offenses, completed a correspondence course while he was incarcerated and is registered as a paralegal by the Ohio State Bar Association.

The board also found that Davie and Alpha Legal Services practiced law without a license by charging a second Ohio “client” to prepare and file written motions in a Michigan child custody case. The board declined to find an additional violation based on Davie’s preparation of documents and appearance at a hearing before the Ohio Adult Parole Board on behalf of a criminal offender.

The Cleveland Metropolitan Bar Association, which prosecuted the unauthorized practice charges against Davie before the board, has filed objections to the dismissal of the third count. Attorneys for the association argue that by using the words “legal services” in the name of his company, using letterhead that identified his firm as a provider of “professional legal consulting” and listing a “bar” I.D. number without indicating that it was an unofficial account number assigned to him as a paralegal member of the Ohio State Bar Association, Davie intentionally attempted to mislead others involved in the parole case into believing that he was an attorney.

Because Davie failed to file a written brief responding the board’s report or the Cleveland Bar’s objections within the time limit set by the Supreme Court’s rules of practice, only the bar association will appear to present arguments before the Court.

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